Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, February 13, 2006

Case law supports Congressional action against President, Joint Staff, and RNC: Rebellion against Constitution

Yesterday, we discussed the impending deadline for Congress on the impeachment. [ Click ]

Today, the DoJ met with House Judiciary Committee, think: "Stonewall, and diversion." [ Click ]

Indeed, the constitutional issues are well noted in the blogosphere. [Georgia10 Click; and Feline: Click Comment #72 ]

One case that may be of interest is one from the 1860s which specifically deal with what is going on today. Unlike the Civil War where the South was in rebellion, today's problem is it is the President who is in rebellion.


71 U.S. 2 Click

It's interesting if you read the case in terms of what is going on today. I'll simply highlight the relevant issues today; and then let the case speak for itself. You'll quickly see that there's a major disconnect between [a] what the legal community and Congress are doing; and [b] what the constitution permits the Congress to do. In short, the Congress has failed to assert power and remind the President of the language in the Constitution.

Commander in Chief: The President can only control military-related personnel

The laws are clear. The President cannot grab power or create power.

There remains, then, but a single
clause to discuss, and that is the
one which makes him commander-in-
chief of the army and navy of the
United States, and of the militia
of the States when called into the
federal service. The question,
therefore, is narrowed down to
this: Does the authority to
command an army carry with it
authority to arrest and try by
court-martial civilians
-- by
which I mean persons not in the
martial forces; not impressed by
law with a martial character? The
question is easily answered.
command an army, whether in camp,
or on the march, or in battle,
requires the control of no other
persons than the officers,
soldiers, and camp followers. It
can hardly be contended that, if
Congress neglects to find
subsistence, the commander-in-
chief may lawfully take it from
our own citizens.

The President has no power to do what he is doing: Abusing the citizenry with unlawful NSA conduct.

* * *

Inherent authority is not recognized by the Supreme Court

The President has no legal foundation to assert he has inherent authority to do anything. The Constitution must state what powers he has, otherwise the power -- unless it is conferred to another branch -- rests with the states and people.

By the Constitution, as originally
adopted, no limitations were put
upon the war-making and war-
conducting powers of Congress and
the President
; and after
discussion, and after the
attention of the country was
called to the subject, no other
limitation by subsequent amendment
has been made, except by the Third
Article, which prescribes that "no
soldier shall be
quartered in any house in time of
peace without consent of the
owner, or in time of war, except
in a manner prescribed by law."

This, then, is the only expressed
constitutional restraint upon the
President as to the manner of
carrying on war. There would seem
to be no implied one

The Supreme Court has already ruled on these matters. It doesn't matter if the White House does or does not wish recognize this.

Rather, the issue is why despite this clear precedent, the Congress is not simply remind the President to stay in line, or he will be found to be in rebellion.

* * *

Crisis: Up to Congress to define

Once the President, Joint Staff and executive are deemed by Congress to be in rebellion, then it is up to Congress to decide when that rebellion is over.

We have confined ourselves to the
question of power. It was for
Congress to determine the question
of expediency
. And Congress did
determine it.

As long as the President and Joint Staff defy the law, then Congress is under no obligation to declare the President's rebellion over. It is up to the Congress to decide when the appropriate balance exists.

* * *

Congress defines the nature of the situation

It is the power of Congress to define when there is or is not a rebellion; and when it is appropriate for Congress to raise a militia to put down this rebellion.

We by no means assert
that Congress can establish and
apply the laws of war where no war
had been declared or exists.

Where peace exists the laws of
peace must prevail

The Congress does not have to defer to the President to ask permission to subdue the President's unlawful President. Rather, it is a specific power the Constitution confers to the Congress to do: Put down rebellions with militias.

* * *

NSA Contractor Indemnification

When the President decides to engage in rebellion, and he chooses to use contractors for unlawful purposes, he may not grant immunity.

But the opinion which has just
been read goes further; and as we
understand it, asserts not only
that the military commission held
in Indiana was not authorized by
, but that it was not in
the power of Congress to authorize
; from which it may be thought
to follow, that Congress has no
power to indemnify
the officers
who composed the commission
against liability in civil courts
for acting as members of

This means one thing: Something that is not authorized, and is not lawful -- as Congress has stated in the FISA -- cannot be given immunity.

In the cited case, this means that where Congress did or didn't do something, that links Congress to the result.

But the situation with the NSA is far simpler. We not only have Congress uninvolved in the indemnification issue -- the President did that -- but the Court has already found that were something is not authorized -- as are violations of FISA -- nobody, not even the Congress that passes a bill related to that matter, may confer immunity.

It does not follow that the President -- who acts in defiance of the Constitution, and violates FISA, can then confer immunity or indemnity to others for supporting his violations.

More broadly, it is reasonable to question the contractor immunity clauses related to prisoner abuses in Iraq; and the basis for civilians being given immunity for their clear violations of treaties and statutes.

It is our view that any court or official that recognizes these agreements is recognizing an unlawful agreement which cannot lawfully be enforced. The statute of limitations issue exists.

* * *

Congress has the sole power to try and make rules

It is the power of Congress to define how this Executive branch rebellion shall be punished -- which rules and which standards of conduct. The President has no say; and the Congress can choose to create courts which the existing system cannot imagine.

It is not denied that the power to
make rules for the government of
the army and navy
is a power to
provide for trial and punishment
by military courts without a jury

It has been so understood and
exercised from the adoption of the
Constitution to the present time.

The UCMJ in Article 36 allows the President to write rules, but these must be consistent with the practices of district court.

No President may state that he alone can make rules, but ignore the rules that require his procedures to follow the law. The UCMJ is a federal statute which the President must follow.

* * *

Congressional Power to create military courts to try those in the Executive Branch who are in rebellion against the Constitution

Congress has the power to raise a militia to put down domestic rebellions, and for creating military tribunals to try those in the RNC and Executive Branch who are engaged in unlawful rebellion against the Constitution.

We cannot doubt that, in such a
time of public danger, Congress
had power, under the Constitution,
to provide for the organization of
a military commission
, and for
trial by that commission of
persons engaged in this
. The fact that the
Federal courts were open was
regarded by Congress as a
sufficient reason for not
exercising the power; but that
fact could not deprive Congress of
the right to exercise it.

Evidence of the alleged conspiracy:

  • PNAC planning documents

  • Discussions to reveal Plame's name

  • NSA knowledge there was no WMD in Iraq

  • President and Joint Staff orders to invade Iraq knowing there was no WMD or imminent threat

  • President and Blair meeting and agreeing to take action in concert despite no known threat by WMD

  • RNC votes to continue funding an unlawful war

  • White House, JTTF, NSA, and RNC retaliation against those who spoke out, had other views, or voiced concerns in the court, on the streets, in schools, and in places of commerce.

    * * *

    State Proclamations as a check on Congressional and Presidential rebellions against the Constitution.

    Here the court outlines a number of interesting questions. Note the last question that relates to the importance of voters -- you, the blogger -- in checking power.

    But may it not be said that
    government includes
    protection and defense as well as
    the regulation of internal
    administration? And is it
    impossible to imagine cases in
    which citizens conspiring or
    attempting the destruction or
    great injury of the national
    forces may be subjected by
    Congress to military trial and
    punishment in the just exercise of
    this undoubted constitutional
    power? Congress is but the agent
    of the nation, and does not the
    security of individuals against
    the abuse of this, as of every
    other power, depend on the
    intelligence and virtue of the
    , on their zeal
    for public and private liberty
    upon official responsibility
    secured by law, and upon the
    frequency of elections, rather
    than upon doubtful constructions
    of legislative powers

    Thus, the State Proclamation calling for impeachment -- which is a state-voter driven action to compel congress to act, is a necessary voting-related activity. By forcing the House to vote, the citizen-voter-blogger is doing what must be done to check power, and exercise what the Supreme Court recognizes as a check on Congressional power, abuse, and neglect.

    It is appropriate to force an impeachment in March 2006 -- by a State Proclamation -- when the Congress refuses to assert power; or relies on "doubtful" constructions of the constitution to assent to the President's rebellion against the Constitution.

    * * *

    It is our view that the AUMF -- as it is applied, in granting the President the "power" to wage unlawful war -- should be found unconstitutional.

    We rely on this precedent: 125 U.S. 190

    The following language guides us to this conclusion:

    In Stone v. Pease, 8 Conn. 541,
    decided in 1831, the question
    arose before the Supreme Court of
    Connecticut as to the validity of
    a legislative divorce under the
    constitution of 1818, which
    provided for an entire separation
    of the legislative and judicial
    . The court, after
    stating that there had been a law
    in force in that State on the
    subject of divorces, passed 130
    years before, which provided for
    divorces on four grounds, said,
    speaking by Mr. Justice
    Daggett: "The law has remained in
    substance the same as it was when
    enacted in 1667. During all this
    period the legislature has
    interfered like the Parliament of
    Great Britain, and passed special
    acts of divorce a vinculo
    matrimonio; and at
    almost every session since the
    Constitution of the United States
    went into operation, now forty-two
    years, and for thirteen years of
    the existence of the constitution
    of Connecticut, such acts have
    been, in multiplied cases, passed
    and sanctioned by the constituted
    authorities of our State. We are
    not at liberty to inquire into the
    wisdom of our existing law on this
    subject; nor into the expediency
    of such frequent interference by
    the legislature
    . We can only
    inquire into the constitutionality
    of the act
    under consideration.

    The power is not prohibited either
    by the Constitution of
    the United States
    or by that of
    the State. In view of the
    appalling consequences of
    declaring the general law of the
    State or the repeated acts of our
    legislature unconstitutional and
    void -- consequences easily
    conceived but not easily
    expressed, such as bastardizing
    the issue and subjecting the
    parties to punishment for
    adultery -- the court should come
    to the result only on a solemn
    conviction that their oaths of
    office and these constitutions
    imperiously demand it
    . Feeling
    myself no such conviction, I
    cannot pronounce the act void."

    The issue is whether it is a greater good to find the AUMF legal or illegal on one simple measure of merit: Far greater damage been done when the AUMF related to Iraq was used to wage unlawful war than has been gained by strictly assenting to the most perverse applications.

    In the instant case, where there are clear egregious results, and there are oaths of office compelling a higher standard, it is reasonable to conclude that the motion does have merit. We remain open to other views, especially from the wise court who may guide us to a better insight. However, it is our view that the case has merit.

    It remains to be understood to what extent the Executive has specifically targeted personnel in the Congressional research service for asserting similar issues in re Article 1 Section 8. It is our view that case law and Supreme Court precedent -- when it does not match this President's rebellion objectives -- is ignored as "partisan." We are not persuaded by that partisan view and would hope the Congress, or barring their interest for their oaths, the States might compel a review during a Constitutional Convention.

    * * *

    Turning back to the issue of Presidential obligations to assent to Congress, FISA, and the will of the people -- as enacted in statute, there is no dispute.

    The President has already taken an oath, and the Supreme Court assents the Article II Section 3 requirement that the President SHALL enforce the laws.

    He is to "take care that the laws
    be faithfully executed." He is to
    execute the laws by the
    means and in the manner which the
    laws themselves prescribe

    Signing statements about torture are no recognized. Any executive employee that takes any action that assents to this signing statement is in violation of the law, and their conduct is not constitutional.

    The point is that these issues have been long-decided; they are not up for public debate, nor the basis for reasonable public concern. Yet, this Congress refuses to assert power; and the public and states have assented to this non-sense.

    This needs to end. The deadline is 1 March 2006, then the states will take action.

    * * *

    A man unfit for office

    The President took an oath to bind his conscience. He refuses to be bound. He is undisciplined, he has no respect for the laws or threat of lawful sanctions.

    The oath of office cannot be
    considered as a grant of power
    effect, is merely to superadd a
    religious sanction to what would
    otherwise be his official duty,
    and to bind his conscience against
    any attempt to usurp power or
    overthrow the Constitution
    . [ 71 U.S. 2 ]

    It is not in dispute that this President has violated the laws of war; has unlawfully waged war without imminent threat from Iraq; and has violated the FISA statute.

    Rather, despite his oath to faithfully execute the laws, he is not bound by any conscious not to usurp power -- as he has done -- or engage in active rebellion against the Constitution.

    It should be a finding of congress that the President is in rebellion.

    We provide you with a list of recommendations to implement this Congressional finding, and lawfully end this President's unlawful rebellion against the Constitution.

    In light of 71 U.S. 2 recognizing Congress has the power to determine the state of affairs, we provide these recommendations for your review: [ Click ]

    If Congress does not wish to act and end this rebellion, then the States after the 1 March 2006 deadline should meet, issue proclamations compelling the House to impeach, and openly discuss what is to be done to lawfully tame the Congress which defies its oath and refuses to protect the constitution -- the source of their authority, and the mechanism by which that authority can be lawfully stripped.

    The power always resides with the people.

    We are the sovereign.

    You, in Congress and the Executive work for us.

    Never forget that.

    You have made a poor choice.

    You have wished for this.

    * * *


    The case above is merely instructive. It is not intended to be legal advice. Rather, the point is clear: Case law related to the events between 2000 and 2006 clearly affirms and clarifies what Congress has the power to do in cases of Rebellion.

    This President, the Joint Staff, NSA, and executive branch are in rebellion against the Constitution.

    Congress refuses to act.

    The Constitution remains the law of the land. The public has options. It is appropriate for all citizens -- voters, and non-voters like -- to confer with their state officials. It is appropriate for state level officials to debate in their legislatures proclamations calling for the President to be impeached.

    State proclamations should demand impeachment, compelling Congress to show its hand -- whether the Congress is for or against the president's rebellion. As of late, the unfavorable weather has sent a clear message: Congress assents to this rebellion.

    The voters need to know where the Congress stands. Even if Congress chooses to do nothing, it appropriate for the voters to have an up or down vote, and plenty of time to assert their zeal, as the Supreme Court has already recognized is the real check on Congressional misconduct.

    The States shall lead where Congress follows rebellion; the voters shall decide whether the Congress is fit to be trusted or should be removed in November. It is time for the States to move. This Congress has failed in their oaths, and in their duty to suppress this President's unlawful rebellion.

    For your convenience:

  • A State Proclamation Archive; Click here to read other content in the State Proclamation Archive.]

  • An NSA Hearing Archive; Click here to read other content in the NSA Hearing Archive.]